Section 107.21 In-flight emergency. (2018)


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Section 107.21 In-flight emergency.

(a) In an in-flight emergency requiring immediate action, the remote pilot in command may deviate from any rule of this part to the extent necessary to meet that emergency.

(b) Each remote pilot in command who deviates from a rule under paragraph (a) of this section must, upon request of the Administrator, send a written report of that deviation to the Administrator.

 

My Commentary on Section 107.21 In-flight emergency.

 

Advisory Circular 107-2 on Section 107.21 In-flight emergency.

An in-flight emergency is an unexpected and unforeseen serious occurrence or situation that requires urgent, prompt action. In case of an in-flight emergency, the remote PIC is permitted to deviate from any rule of part 107 to the extent necessary to respond to that emergency. A remote PIC who exercises this emergency power to deviate from the rules of part 107 is required, upon FAA request, to send a written report to the FAA explaining the deviation. Emergency action should be taken in such a way as to minimize injury or damage to property.

FAA’s Discussion on Section 107.21 In-flight emergency from the Final Small Unmanned Aircraft Rule 

In case of an in-flight emergency, the existing regulations in 14 CFR 91.3 give a PIC the power to deviate from the applicable FAA regulations to the extent necessary to respond to that emergency.74 A PIC who exercises this power must provide a written report of the deviation to the FAA if requested to do so by the agency.75 The NPRM proposed to not provide emergency powers to a small UAS operator because a small unmanned aircraft is highly maneuverable and much easier to land than a manned aircraft. Thus, the NPRM posited that in an emergency situation, an operator should be able to promptly land the small unmanned aircraft without needing to deviate from any part 107 regulations. The NPRM invited comments as to whether a small UAS remote pilot in command should be
permitted to exercise emergency powers similar to those available to a PIC under § 91.3. Several commenters including AUVSI, AIA, and Trimble Navigation, supported allowing small UAS operators to exercise emergency powers in certain circumstances. Prioria provided examples where a small UAS may need to violate the proposed 500-foot altitude limit and the visual-line-of-sight requirement in order to avoid a collision with a manned aircraft or remove an uncontrollable small unmanned aircraft from the NAS. Another commenter provided an example of a situation where the only viable option to prevent a mid-air collision would violate the prohibition on operations over people (as a result of any lateral movement by the UAS) or the various operational restrictions in § 107.51 (as a result of any vertical movement by the UAS). The Permanent Editorial Board of the Aviators Model Code of Conduct Initiative noted that there are scenarios where unauthorized small UAS penetration of controlled airspace may be required to avoid an accident, and proposed that the FAA authorize small UAS operators to penetrate controlled airspace to the extent necessary to avoid (at least) personal injury or death.

One commenter said small UAS operators should be permitted to exercise emergency powers, but only to prevent serious injury, death, or a mid-air collision. Southern Company and Trimble recommended permitting UAS operators to deviate from FAA regulations in emergencies to mitigate injury, damage, or risk. Southern Company argued that by not extending emergency deviation authority to UAS operators, the FAA could be forcing a UAS operator to choose between deviating from FAA regulations and ensuring safety.

Several commenters, including Skycatch, Clayco, and AUVSI, specifically recommended revising proposed § 107.19 to be consistent with 14 CFR 91.3—i.e., allow an operator to deviate from any rule of part 107 to the extent required in an emergency requiring immediate action, and require, upon the request of the Administrator, the operator to submit a written report of that deviation. Textron Systems said that 14 CFR 91.3 should apply to UAS, because an unmanned aircraft is considered an aircraft according to 49 U.S.C. 40102(a)(6). AIA said the provisions and intent of § 91.3 should apply to UAS.

Conversely, NBAA, Predesa, Planehook, and another commenter supported the FAA’s proposal not to provide a remote pilot with the emergency powers available to a PIC under § 91.3(b). NBAA and Predesa concurred with the FAA’s proposal but did not provide any additional justification. Planehook cited Articles 28 and 8 of the Convention on International Civil Aviation, which the commenter said creates the basis for nations to grant emergency powers to the PIC of an aircraft in distress, and Article 8, which the commenter said states that each contracting State undertakes to ensure that the flight of such aircraft without a pilot in regions open to civil aircraft shall be controlled so as to obviate danger to civil aircraft. Planehook contended that the granting of emergency
powers to operators of unmanned aircraft would violate this existing international agreement. One commenter argued that until UAS are able to communicate, operate accurately in controlled airspace, follow in-flight restrictions and spacing requirements, and fly specific altitudes and routes, emergency powers are unnecessary. The FAA agrees with the commenters who pointed out that there are emergency scenarios in which a remote pilot may need to deviate from certain provisions of part 107, such as altitude and visual line of sight, to avoid an unexpected and unforeseen collision
with a manned aircraft or a person on the ground.

The FAA also agrees that in certain emergency situations it may be safer to deviate from one or more operational requirements of part 107 (e.g., regarding altitude or controlled airspace) than attempt to land the small unmanned aircraft immediately. For example, if a manned aircraft approaches the small unmanned aircraft from below, the small unmanned aircraft may be unable to immediately descend and land without risking a collision.

Accordingly, during an in-flight emergency, this rule will allow the remote pilot in command to deviate from the provisions of part 107 to the extent necessary to respond to
that emergency. As the FAA previously pointed out with regard to its emergency regulations, “the plain-meaning dictionary definition of an emergency is an unexpected and unforeseen serious occurrence or situation that requires urgent, prompt action.” Just as it does with other FAA regulations, this plain meaning will govern the agency’s understanding of what constitutes an emergency for part 107 purposes.

Additionally, because part 107 will allow a deviation only during an in-flight emergency, this deviation cannot be taken for situations that were expected or foreseen prior to the takeoff of the small unmanned aircraft. If a remote pilot in command expects or foresees an emergency situation prior to aircraft takeoff, then the remote pilot in command must delay or cancel takeoff or otherwise alter the parameters of the operation to the extent necessary to ensure full compliance with part 107.

The FAA also emphasizes that the remote pilot in command must always prioritize the safety of human life above all other considerations. As such, the remote pilot in command may not endanger human life in order to save the small unmanned aircraft. To the contrary, the remote pilot in command is expected to sacrifice the small unmanned aircraft if it begins to pose a danger to human life.

The FAA further agrees with (and has included in this rule) the recommendation that, just like § 91.3, the remote pilot in command must, upon FAA request, submit a report to the FAA if he or she has exercised his or her emergency powers. This report must provide a detailed explanation of what happened. This requirement will enable FAA oversight over the exercise of emergency powers by giving the agency a method to better understand the circumstances and reasons that an individual remote pilot in command had for deviating from part 107.

The FAA disagrees with the comment arguing that granting emergency powers to a remote pilot in command would violate U.S. international obligations. The FAA notes that Article 28 of the Convention of International Civil Aviation, which was the provision cited by the commenter, does not address the granting of emergency powers to remote pilots of unmanned aircraft. Article 8 of that Convention, which governs “Pilotless aircraft,” states that:
“No aircraft capable of being flown without a pilot shall be flown without a pilot over the territory of a contracting State without special authorization by that State and in accordance with the terms of such authorization. Each contracting State undertakes to insure that the flight of such aircraft without a pilot in regions open to civil aircraft shall be so controlled as to obviate danger to civil aircraft.”

The plain language of Article 8 does not prohibit a contracting State from giving emergency powers to a remote pilot in command operating within that State. Because neither Article 8 nor any other provision of the Convention of International Civil Aviation prohibits the granting of emergency powers to a remote pilot in command, this approach will not violate U.S. international obligations.

Several commenters addressed the issue of proper emergency training for small UAS operators. One commenter said that if small UAS operators have passed a reasonable operator license exam, they can indeed be trusted to behave well in an emergency situation. The NJIT Working Group said that remote pilots need to be properly trained so they will better understand what constitutes an emergency. Pointing to the NPRM’s discussion of training small UAS pilots on emergency procedures, ALPA concurred with the need for training and recommended it include considerations in the exercise of emergency authority, however remote the likelihood of emergency may be. The FAA concurs with commenters’ points that small UAS pilots must be proficient in emergency procedures and the proper exercise of emergency authority. That is why, as discussed in section III.F.2.j of this preamble, emergency procedures and emergency authority will be tested on the initial and recurrent knowledge tests. Thus, in order to pass an initial knowledge test and obtain a remote pilot certificate, applicants for a remote pilot certificate will need to acquire proficiency in these areas of knowledge. UASspecific exercises of emergency procedures and authority will also be included in the training course that part 61 pilot certificate77 holders will be able to take instead of the initial and recurrent knowledge tests.

One commenter recommended that the FAA conduct further analysis before providing a small UAS pilot with emergency powers in the final rule. The FAA disagrees. Emergency powers have been a longstanding feature in FAA regulations without an adverse effect on safety because they allow the PIC to respond to an emergency situation in a context-specific manner.78 As discussed earlier in this section, deviating from certain operational requirements may, at times, be unavoidable in order to minimize risk to other people.

Two commenters suggested that the FAA prescribe specific methods to respond to an emergency situation. One commenter stated that lost link is an emergency and should be declared to ATC or on Unicom to notify other air traffic. Another commenter similarly said small UAS operators should be required to send out a distress signal to aircraft within the vicinity if there is signal loss or other operational failures.

The FAA does not mandate a specific response to an emergency, as the safest response to an emergency situation may vary based on the surrounding context. For example, the safest response to an emergency situation in a rural area may differ from the safest response to the same situation in an urban area. As such, the FAA will not limit the remote pilot in command’s ability to respond to an emergency situation in a context appropriate manner. Rather, a remote pilot in command is permitted to respond as necessary to resolve the urgent situation. There is neither a requirement nor a prohibition from declaring an emergency, either by radio communication or by other means, if doing so is appropriate under the circumstances. For example, in a lost-link scenario, the remote pilot in command may declare an emergency if it appears that the small unmanned aircraft may hit a person on the ground. Conversely, lost link may not be an emergency if there are no people or manned aircraft near the area of operation.

The FAA also disagrees with the commenter who suggested that the remote pilot in command must be required to send out a distress signal if there is signal loss or other operational failures. Due to the limited operational capabilities of small UAS, an operation failure or signal loss may not necessarily constitute a hazard to persons or property.

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Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.